A South African testator has almost unlimited freedom of testation and may stipulate in his or her will whatever he or she wishes. As a result, the contents of wills may vary greatly.

The manner in which assets are distributed after death depends on whether a will or other valid documents containing testamentary provisions, such as an antenuptial contract, exists.

But freedom of testation is not absolute and is subject to limitations imposed by various pieces of legislation.

When a person dies without a will or their will, or part of it, is declared invalid for whatever reason, that person’s estate will be distributed according to the principles of common law. In the event of intestacy, the assets are distributed in order of preference among the heirs, as stipulated by the Intestate Succession Act.

Not too long ago the act existed side-by-side with a statutorily-regulated customary-law regime of intestate succession, applied on a racial basis, but this was brought to an end by the Constitutional Court, making the act applicable to all.

So if a person is quite happy with the pecking order of intestate succession, why bother to make a will? There are many drawbacks to dying intestate and some are listed below.

A will can avoid many problems and can be the instrument to wind up an estate as speedily as possible.

The children of a very close friend of mine, who died six years ago without a will, are still waiting for the national guardian fund to release their inheritance.

So there is no doubt why it is important. It states who inherits your property, who is the guardian of your minor children; and who is in charge of your estate administration. In other words: not the government.

Unfortunately, the red tape does not end there. Apart from a default inheritance regime, South Africa is one of the few countries that have a default matrimonial system of “in community of property”.

It is an approach which applied to “white” marriages through the common law and was only extended to include “black” marriages in December 1988. Prior to this extension, “black” marriages concluded in terms of the civil laws of the country were automatically out of community of property.

According to the Recognition of Customary Marriages, all customary marriages are entered into in community of property and of profit and loss between the spouses, unless the parties have an antenuptial contract.

The act came into operation on 15 November 2000. As a result, polygynous, customary marriages entered into before the commencement of the act was regarded as being out of community of property, not subject to the accrual system.

The 2016 High Court monogamous, customary marriages; polygynous, customary marriages concluded before the commencement of the Act; and spouses must share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property; and each spouse must have similar rights in respect of the family home.

Parliament has until 30 November 2019 to rectify the act based on the Constitutional Court’s ruling back in 2000, failing which, the court’s interim order will become final.

Cliffe Decker Hofmeyr says that for the sake of clarity, it is worth noting that parties that conclude polygynous, customary marriages after the commencement of the act are required to make an application to a court for approval of a contract between all spouses which will regulate their future matrimonial property regimes.

Failure to do so does not invalidate the subsequent polygynous, customary marriage, but the default will be that the latter is out of community of property.

In this instance, the former continues to be subject to the matrimonial property regime applicable at the time of its conclusion.

While the Draft Bill is a definite step in the right direction, practically we anticipate that the provisions will be very difficult to implement. Especially on termination of the marriage by death, it is likely that the surviving spouse/s and the executor/s will need to approach the courts for direction.

This is not a satisfactory result due to the costly nature of court applications, and it is accordingly likely that in these cases the benefits envisaged by the Bill are nullified.

Until then, And then, and only then will the consequences of the matrimonial property system – not specifically excluded by the spouses, upon the death of the male spouse – mean not all remaining spouses are entitled to an equal division of the joint estate.

Although in community of property rules exist to recognise the non-monetary contributions of a wife after the death of her husband and grants her access to a share of marital property, in traditional and other civil unions the intention is not exactly being realised.

It is a common problem in South Africa, particularly in rural areas, that when spouses to a customary marriage institute divorce, a husband indicates an unwillingness to accept the division of the matrimonial property.

In some cases, people separate informally without obtaining a divorce and this leads to them missing out on benefiting from the legal rules regulating the consequences of the dissolution of the customary marriage.

Against this background, it seems most people are not aware that their customary marriages are by default in Community of Property and they are entitled to an equal division of the joint estate.

The reality in South Africa is that people in economically disadvantaged communities get married without knowing that such marriage is actually a contract that has consequences on their legal rights as a person, property and the estate of their spouse.

If you and your partner married without an antenuptial contract, you are automatically married in community of property. All your assets are jointly owned, even if they belonged to you individually before the marriage.

Many people who are married in community of property may also believe that if a property is left to them in a will (only one of the two spouses), it is untouchable and cannot be attached to settle outstanding debts.

That is not true. Joint ownership also extends to liabilities. The joint estate must be wound up by an executor in terms of the Administration of Estates Act. The executor will pay any debts owed by the estate and collect any money owing to the estate.

When all debts have been settled, the surviving spouse is entitled to half the net balance of the estate. It’s important to note that this is not an inheritance, and no inheritance tax is payable.

So, to prevent this from happening, the testator can expressly exclude the inheritance from the community of property in his or her will or, alternatively register a “fidei commissum” against the title of the property.

Fidei commissum is where a property owner transfers his/her property to another person on condition that the property will be transferred to a third party at a later stage. For example, a husband can leave the house to his wife with the precondition that on her death it will be passed on to their child.

In terms of the common law and the Deeds Registries Act, another way of excluding the property from community of property is to incorporate the exclusion as a condition in the title deed.

But that takes a lot of know-how and access to a decent attorney.

What adds insult to injury when you are married in community of property to the deceased person or had joint bank accounts, is that that bank account will be frozen by the bank and executor until he/she is sure that the estate is solvent.

Cash from the estate itself may only be advanced to you once the executor has been appointed. Obviously the executor must also be confident that he can advance cash at this early stage in the estate process. It does not matter if the spouse has debit orders in place for utilities, insurance or school fees. These services may be suspended if the debit orders are returned unpaid. Contingent liabilities, such as a mortgage bond, overdraft, vehicle instalments and credit cards are not frozen at death and will continue to accumulate interest.

Lawyer friends of mine recommend that couples have a separate float to provide for daily living expenses.

By contrast, if you are married out of community of property you each have your own separate estate. This does not change on death, so when one spouse dies, only the deceased’s estate is wound up.

But a prenuptial contract, or even a valid will, still doesn’t address some of the challenges faced by rural families who live by custom traditions and laws.

And although the default system itself does not infringe on an indigent party’s right to equality in terms of the Constitution, indigent parties are not granted equal benefits of the law as those of their more affluent counterparts, who have the education and resources to conclude a marriage contract of their choice after making an informed decision. And women are usually at the short end of the stick.

South Africa still has some way to go, especially in harmonising common and custom laws. Strong property rights are a critical component of land ownership. This includes how the law governs the management of assets after the death of a spouse. Not having control of land or housing can deprive women and their children from direct economic benefits. BM